WASHINGTON - Attorney General John Ashcroft's efforts to reshape federal policy on the right to bear arms to conform with the views of the National Rifle Association have run into a legal buzz saw in an exhaustively challenging decision in a U.S. 9th Circuit Court of Appeals case in California.
The decision, upholding a state ban on assault weapons, forcefully rejects Mr. Ashcroft's recent policy declaration that the Second Amendment, contrary to repeated views by lower federal courts, bestows the right to own firearms on individuals rather than, as the amendment explicitly says, on "a well regulated militia."
The California decision directly disagrees with an earlier U.S. 5th Circuit Court of Appeals decision, in a Texas case, upholding the right of a man to possess a gun while under a domestic violence restraining order. It was on this decision by the New Orleans court that Mr. Ashcroft based his switch from long-standing Justice Department policy.
Although Mr. Ashcroft pledged in his Senate confirmation hearings that he would not impose his views in opposition to gun control laws if confirmed to be attorney general, he did just that in his policy statement. It followed an earlier letter to the NRA saying he "unequivocally" believed that "the text and the original intent" of the Second Amendment was to protect individual gun ownership.
Gun control advocates are gleeful over the California decision, which went out of its way to trash the Texas decision, a case in which the defendant eventually was convicted, and inferentially Mr. Ashcroft himself.
"What the drafters of the amendment thought `necessary to the security of a free state' [language in the amendment] was not an unregulated mob of armed individuals ... [or] the modern-day ... Michigan Militia," Judge Stephen Reinhardt wrote. "The historical record makes it plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership."
Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence, calling the opinion "truly remarkable," says it confronts the U.S. Supreme Court with a split between two circuit court jurisdictions. But even that may not dissuade the court, which has long dodged Second Amendment cases, from ruling if, as now expected, the gun lobby seeks a review.
Mr. Ashcroft's act in interpreting the Second Amendment to square with the NRA position and then instructing federal prosecutors to take the Texas decision as their guide in handling gun cases has put him in a contradictory posture.
As the nation's chief law-enforcement officer committed to cracking down on criminals, his policy shift opened the door for criminal defendants to use the broader interpretation of individual gun ownership in combating gun control laws under which they may be charged.
But Mr. Ashcroft now will have to decide whether to hold to his position in light of the California decision or cave in, to the ire of his NRA friends and supporters.
Matt Nosanchuk, litigation director of the Violence Policy Center here, says Mr. Ashcroft's move to make his interpretation of the Second Amendment federal policy "has awakened a sleeping giant" in the form of the 9th Circuit Court in its decision defending gun laws premised on the amendment as bestowing a collective rather than an individual ownership right.
"Ashcroft thinks he can be tough on gun crime and soft on the Second Amendment," Mr. Nosanchuk says. "He can't; they're mutually irreconcilable."
The California decision comes as the controversy over the Second Amendment will soon be spotlighted again. The existing federal law banning assault weapon possession expires in 2004 and comes up for reconsideration.
"The NRA no doubt will raise the Second Amendment flag again," says Mr. Nosanchuk, but will have difficulty using it successfully in light of the California decision. Meanwhile, Mr. Ashcroft finds himself in a tight corner on the whole issue within the legal community.
Jules Witcover writes from The Sun's Washington bureau. His column appears Mondays, Wednesdays and Fridays.